Courts, Ballots, Immunity!

This week the Federal Appeals Court three-judge panel finally released their ruling on the request of the former president to claim immunity from prosecution for any of his actions during the insurrection.

The ruling was lengthy but clear. The actions taken on January 6 were not in keeping with his presidential duties and he, as Citizen Trump, was not entitled to any more rights than any other criminal defendant.

The decision further said, as noted by the New York Times:

“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches,” they wrote. “Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute and the judiciary could not review. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”

After further discussion, the judges conclude in a unanimous unsigned decision:

“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” the judges wrote. “Nor can we sanction his apparent contention that the executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”

The opinion would send the case being appealed back to the DC Court of Judge Tanya Chutkin to proceed to trial unless further appealed. The defendant was given until February 12^th to ask for the Supreme Court to step in and rule on this finding. Many legal minds discussed this ruling, and have concluded that this opinion is so well argued and final in its conclusions that the judges on the Supreme Court would have no case law to change or decision to edit and would likely leave it as stated, negating any decision on appeal.

George Conway, writing in The Atlantic, noted:

“In engaging in that analysis, the appeals court did something very important, from the standpoint both of bolstering its conclusion and of insulating its decision from Supreme Court review. The panel, as smart judges do, limited its analysis to the specific “case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term” (emphasis mine).

And so, the balancing question became: Does the nation’s interest in protecting democracy outweigh the danger that potential post-presidency prosecution might deter presidents from doing their job? When posed that way, the question admitted of only one possible answer: yes—by a country mile.:”

The public will soon learn whether the Supreme Court will take this appeal under advisement or decline to review the decision. I certainly hope that SCOTUS will affirm the appeals court decision and allow the criminal case to proceed apace.

The other major court case in town this week was the petition to keep anyone off the ballot who had engaged in insurrection as mentioned in the 14^th Amendment to the Constitution. The states of Colorado and Maine, responding to voter complaints, each petitioned the Court to rule on the continued eligibility of the former president to appear on the ballot.        

Radio stations broadcast the hearings as the Supreme Court does not allow televised proceedings. That morning, the curious public lined up outside the Court hoping to be allowed to snag the few seats in the court allotted to them as interest in this topic was quite high. I feel DJT should never hold public office again and applaud the intention of the petitioners. However, I also believe that his personality is so unstable, that were he denied a place on the ballot, he could call out the fury of his small group of irrational conspiracy-minded followers who would again heed his bidding. While Constitutional questions such as these need to be decided, congressional legislation may be the best way to go. However, with Congress, as messed up as it has been recently, I doubt that such serious legislation would be possible.

Several Justices questioned the reasoning from the states and some wondered if this scenario could lead to blue states acting one way and red states another, resulting in serious confusion as to who qualified to appear on said ballots. Defenders of the ballot changes stressed the unique quality of the charge of insurrection and its rarity, while the justices looked toward the question of riots vs. insurrection and officer vs. presidential office. In the end, it appears that the cases were defended one way and heard in an entirely different mode by the Court. Several commentators noted this week that the Justices may even rule 9-0 against this petition. Several lawyers guessed the Justices were looking for an off-ramp, a loophole, or anything that could allow them to not favor this ballot change. Others have posited that if they ruled for the former president in this instance, they could they could then support the ruling of the appeals court, and maybe be less criticized as partisan. (One from column A and one from column B perhaps?)

Ruth Marcus, writing in the Washington Post, believes the Justices should hear the appeal, even as she thinks it will not be supported.

“The justices are going to be understandably leery of doing anything that looks like they are putting a thumb on the scale for, or against, Trump. But the unavoidable reality is that whatever course they choose has political reverberations. A decision to treat the case as if the calendar doesn’t matter carries political consequences as well.

We’re in uncharted territory here, with the likely GOP nominee facing an array of criminal charges. It is in the public interest for that liability, or as much of it as possible, to be determined before the election. If Trump is acquitted, so be it. If he is convicted, that might affect some voters’ choices, but it would not disqualify him from being elected or serving. Don’t the voters have a right to know if they are choosing a felon?”

 

For many, the Court is already at a questionable standing regarding its impartiality or inability to review cases based on law without a heavy finger on that supposedly fair scale of justice. Writing in Vanity Fair, Attorney Christian Farias of Inquest states “he has marveled at how much of his legal training has been rendered irrelevant by Chief Justice Roberts.” Not only does he fault the Justice for not adequately considering the swirling ethics questions, gifts, and trips, but he chides him for hiding behind judicial independence in his refusal to answer questions from the Senate Judiciary Committee. And, his article concludes, that in a city running on political capital, the court may be, by coming to unpopular conclusions on matters central to our democracy, running on empty.

We should have more clarity tomorrow when we find out if an appeal will be filed and, if so, if it will be accepted.

I seriously hope that speedy justice is served, and a criminal trial will take place soon. This man has avoided accountability his entire life, and I am so pleased to see that some delays he put in place are eroding.

News note: That is all for tonight. There are reports that Israel will bomb Rafah, the last safe haven for civilians in Gaza. The leaders have been warned to not do this by the US and many other countries. From what I can determine, there is no justification for these raids, and they should cease.

Till next week – hope for peace.